On the heels of Utah and Washington, Oregon has announced it will enact a form of diploma privilege. Oregon’s rule is closer to Utah’s than Washington’s—like Utah, it extends only to first-time test-takers who recently graduated from ABA-accredited schools, with some caveats. I had my analysis on Utah’s proposal then, with some “heat and light” reactions to it. But I wanted to highlight three curiosities.

First, it expressly treats Oregon schools differently from out-of-state schools. From the rule:

Granting a one-time "diploma privilege" to persons who timely submitted complete applications for the July 2020 Oregon bar examination and who either (1) graduated in 2020 from one of the three Oregon law schools; or (2) graduated in 2020 from any other law school accredited by the American Bar Association that had a minimum of 86 percent of graduates pass a 2019 Bar exam on their first attempt. All character and fitness requirements continue to apply.

Among Oregon’s three schools, only the University of Oregon (86%) had a first-time passing rate that met or exceeded the 86% threshold. Both Lewis and Clark (81%) and WIllamette (82%) would have failed the standard. Utah’s rule was an 86% threshold that applied to everyone, but one that both Utah schools met. It’s not clear how such in-state favoritism will be received. But, as I noted in the Utah proposal, recognizing diploma privilege for about a third of all law schools is generous compared to in-state only practice.

Second, it uses the 86% standard, and I don’t know where or why. The first-time pass rate for the July 2019 exam was 84%. That’s lower if you count the February 2019 exam results, too. Did Oregon just use the 86% Utah used? Maybe? Given that Utah and Oregon use different cut scores, it seems extra strange. (If someone has more information, please share! I’m dealing with a second-hand report here!)

Third, the 86% standard seems even less justifiable given that Oregon is announcing a temporary reduction in the cut score from 274 to 266. That moves Oregon from one of the highest in the country to at the bottom end of average. Schools that historically have a sub-86% pass rate would assuredly do better on this exam than their overall pass rate would otherwise suggest. (Conversely, however, and undermining my own point, the pass rate should also increase in this administration, so perhaps it accounts for the fact that the test will be easier and therefore a school’s cumulative pass rate should be accordingly higher.)

In any case, I think both Utah and Oregon recognize that first-time test-takers pass at overwhelmingly high rates in their jurisdictions, and the cost of a handful of additional admitted attorneys outweighs the consumer protection concerns. Washington’s rule, in contrast, would admit far more who failed the bar once, or even multiple times. It remains to be seen what long-term effect this has, or whether other jurisdictions adopt similar proposals.

But both Utah and Oregon emphasize that overall pass rates matter a lot for out-of-state benefits. Schools with relatively high pass rates in tougher jurisdictions like California and Virginia won’t reap the benefit unless they can secure more success for their students in absolute terms.

UPDATE: I’m usually pretty generous with the comments for posts, but this one has prompted some bickering and I’ve trimmed back on them.